Austin and National Disability Insurance Agency

[2022] AATA 16

Austin and National Disability Insurance Agency [2022] AATA 16 (11 January 2022)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):      2021/8786

Re:Susan Austin

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Member P Smith

Date:11 January 2022

Place:Brisbane

The Tribunal decides that it has jurisdiction, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth), to review the decision of the Respondent made on 14 October 2021, being a decision to confirm the approval of the statement of participants supports in the Applicant’s plan dated 12 June 2021.

.........................[SGD].........................

Member P Smith

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – participant of scheme – Tribunal jurisdiction – procedural fairness – where the applicant sought an internal review and the NDIA conducted an unscheduled plan review under subsection 48(2) of the National Disability Insurance Scheme Act 2013 (Cth) – question of whether consent to apply for an internal review

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

National Disability Insurance Scheme Act 2013 (Cth)

Cases

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Collector of Customs (NSW) and Brian Lawlor Pty Ltd [1979] FCA 21

NNXF and National Disability Insurance Agency [2019] AATA 5552

REASONS FOR DECISION

Member P Smith

11 January 2022

INTRODUCTION

1. Ms Susan Austin (the Applicant) is a participant of the National Disability Insurance Scheme (the NDIS). She has an intellectual impairment, chronic schizophrenia (paranoid type), epilepsy and osteoporosis.

2. The issue in this matter is whether the decision made by the National Disability Insurance Agency (the Respondent) on 14 October 2021 under subsection 48(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) should be treated as an internal review decision under subsection 100(6) of the NDIS Act. Further, whether the Tribunal has jurisdiction to consider the Application for review filed on behalf of the Applicant on 9 November 2021.

3. A telephone Interlocutory Hearing was held on 20 December 2021 to allow the parties to make submissions, addressing the question of jurisdiction. The Applicant’s Advocate and Guardian appeared for the Applicant, and a representative for the Respondent appeared at the hearing.

THE POSITION OF THE PARTIES

1. The Applicant’s case is that the Tribunal does have jurisdiction to consider the application for review. The Respondent’s case is that the Tribunal does not have jurisdiction to consider the application for review.

2. The Applicant submits that the section 48(2) decision should be treated as a decision made under subsection 100(6) of the NDIS Act. This is because the application for internal review was made within the statutory time period as required under section 100 of the NDIS Act and gave the Applicant the right to seek an internal review of a reviewable decision.

3. The Respondent submits that the Tribunal should not treat the section 48(2) decision as one made under subsection 100(6) because the application for internal review lodged with the Respondent on 10 September 2021 was invalid. This was because the consent of the Guardian had not been established or obtained by the Respondent as per their policy until 4 October 2021, which was outside of the statutory time period of three months.

BACKGROUND FACTS

1. On 12 June 2021, following a scheduled plan review of the Applicant’s previous plan, a delegate of the Chief Executive Officer (CEO) of the Respondent approved the Applicant’s statement of participants support (the plan) pursuant to subsection 33(2) of the NDIS Act for the period 12 June 2021 to 11 December 2021.

2. On 14 June 2021, the Respondent gave notice of their decision to the Applicant advising the Applicant that the Respondent had approved her plan for the period 12 June 2021 to 11 December 2021. The notice informed the Applicant that she could make a request to the Respondent to conduct an internal review of the decision made by the delegate on 12 June 2021 to approve the Applicant’s plan within three months of receiving the Notice.

3. On 21 July 2021, the Queensland Civil and Administrative Tribunal made an order appointing the Applicant’s nephew, Matthew Peter Smith, as the Applicant’s Guardian giving him the power to make decisions in respect of the Applicant’s accommodation, health care and the provision of services, including in relation to the NDIS.

4. On 10 September 2021, Ms Fiona Campbell, NDIS Advocate from Speaking Up For You Incorporated (SUFY) sent an email to the Respondent on behalf of the Applicant and her Guardian. In her email, the Advocate advised the Respondent that she was instructed by the Guardian to lodge with the Respondent an application to review the reviewable decision made by a delegate of the Respondent on 12 June 2021 to approve the Applicant’s statement of participants support for the period 12 June 2021 to 11 December 2021. The email also included a number of attachments, including a sealed copy of the Guardianship Order of 21 July 2021, a copy of a consent form signed by the Guardian on 10 September 2021 giving authority to SUFY to release information to and if necessary, obtain information from the NDIA and other agencies about the Applicant, and two medical reports about the Applicant’s mental health conditions.

5. On 14 September 2021, the NDIA unsuccessfully attempted to contact the Guardian on his mobile. The interaction records notes that the NDIA attempted to call the Guardian because the application for internal review that had been lodged on behalf of the Applicant on 10 September 2021 had not been signed by the Guardian. No further reasonable attempts were made by the NDIA to contact the Guardian to either confirm or obtain his consent to the making of an internal review application on behalf of the Applicant until 4 October 2021.

6. On 1 October 2021, the Advocate sent a further email to the Respondent with particular reference to the internal review application she lodged on behalf of the Applicant on 10 September 2021. The Advocate requested that the reviewer conducting the review not yet make a decision because there was further information to be provided, however, this was not yet available.

7. On 4 October 2021, the NDIA sent the Advocate an email acknowledging receipt of the further information provided in her email of 1 October 2021, relating to the Applicant’s review. According to the Respondent’s Representative the NDIA also made telephone contact with the Guardian on 4 October 2021 ‘to obtain his consent to lodge a review’. The interaction records also record that ‘CSO could not lodge as s.100, as timeframe has ended’[1].

   [1] Documents filed on 20 December 2021 by Respondent, page 46.

8. Between 11 October 2021 and 14 October 2021, the NDIA and the Guardian and the Advocate held a number of telephone meetings with each other to discuss aspects of the Applicant’s plan and the different review processes available to the Applicant. Further, it was discussed whether the Applicant should discontinue her internal review application on the basis that the Respondent considered that consent had not been established or obtained from the Guardian as per the NDIA’s policy at the time the internal review application was lodged.

9. On 14 October 2021, the Respondent made a decision under subsection 48(2) which is the subject of this review. The Respondent stated in their decision that the main reason for deciding not to conduct an unscheduled review was because the application for internal review was invalid due to consent not being established post 100 days from the planning meeting. The Respondent also stated that the Applicant had not provided any new evidence on the basis of there being a change to the Applicant’s circumstances.

RELEVANT LEGISLATIVE PROVISIONS

1. Chapter 3, Part 2 of Division 3 of the NDIS Act sets out how a person becomes a participant of the NDIS, and how a person’s plan is created and approved, and the mechanisms by which a participant can have their plan reviewed.

2. Section 33(2) of the NDIS Act sets out the matters that must be included in a participant’s plan. Relevantly, subsection 33(2) provides that:

   (2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

   (a)the general supports (if any) that will be provided to, or in relation to, the participant; and

   (b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and

   (c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and

   (d)the management of the funding for supports under the plan (see also Division 3); and

   (e)the management of other aspects of the plan.

3. Section 48 of the NDIS Act provides for scheduled and unscheduled reviews of a participants plan. Subsection 48(1) provides that a participant may request that the CEO of the NDIA conduct a review of the participant’s plan at any time. Subsection 48(2) provides that the CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review. Subsection 48(4) provides for the CEO, on their own initiative to conduct a review of a participant’s plan at any time.

4. Part 6 of Chapter 4 of the NDIS Act sets out the types of decisions that can be reviewed internally by the NDIA and externally by the Tribunal. These decisions are listed in the table set out in section 99 as reviewable decisions. Relevantly, a decision to approve a statement of participant’s support under subsection 33(2) and a decision not to reassess a participant’s plan under subsection 48(2) are, for the purpose of section 99, both reviewable decisions.

5. Subsection 100(2) of the NDIS Act provides that a participant who is directly affected by a reviewable decision may request the decision-maker to review the reviewable decision. If the person is given a notice under subsection 100(1), the person must make the request within 3 months after receiving the notice. Subsection 100(3) provides that a request to review a reviewable decision may be made by sending or delivering a written request to the decision-maker, or making an oral request, in person or by telephone or other means, to the decision-maker. Subsection 100(6) imposes an obligation on the reviewer to make a decision as soon as reasonably practicable to confirm, vary or set aside or substitute the reviewable decision.

6. Section 103 of the NDIS Act provides for applications to be made to the Tribunal by a person aggrieved by a decision made by a reviewer under subsection 100(6). The Tribunal cannot review a decision unless an internal review decision has been made by a reviewer of the NDIA.

DISCUSSION

1. A delegate of the Respondent made a reviewable decision under subsection 33(2) of the NDIS Act on 12 June 2021 to approve a statement of participants support in respect of the Applicant. The Respondent gave the Applicant notice of this decision on 14 June 2021. The notice informed the Applicant that she had a right as an affected person to seek an internal review of the decision of 14 June 2021 by lodging an application for a reviewable decision within 3 months from the date of receiving the notice of decision.

2. The Applicant via her Guardian lodged in writing by email, with the assistance of the Advocate, an application for review of a reviewable decision within the three-month time period as set out under subsection 100 of the NDIS Act. This requirement has been met.

3. The question of consent being established or obtained from the Guardian at the time the application for internal review was lodged, was a policy of the Respondent rather than a legislative requirement.  The Tribunal must make the correct or preferable decision, however, in arriving at the correct or preferable decision, the Tribunal is at liberty to depart from policy[2].

   [2] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

4. It is apparent from the material that has been provided to the Tribunal that it was clear that the Applicant was seeking an internal review of the decision made on 12 June 2021 and notified on 14 June 2021, which she had a statutory right to do as set out in section 100 of the NDIS Act. Clearly, the Applicant was not seeking an unscheduled review.

5. The Applicant should have available to her the right to seek an internal and external review. If the Applicant was not given the opportunity to seek an internal review and on application to the Tribunal, an external review of the original decision, her avenue of review would be limited in scope to the reasons why the Respondent decided on 14 October 2021 not to conduct an unscheduled review. It would not give her access to the advantages of an external review before the Tribunal. 

6. An external review by the Tribunal would ensure that a person who is aggrieved by a decision is able to have that decision reviewed and to ensure that the correct and preferable decision is made[3].

   [3] NNXF and National Disability Insurance Agency [2019] AATA 5552 at [24].

7. Further, the Administrative Appeals Tribunal Act 1975 (Cth) is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and law[4].

   [4] Collector of Customs (NSW) and Brian Lawlor Pty Ltd [1979] FCA 21 at [14], per Bowen CJ

CONCLUSION

1. Accordingly, in the circumstances, it is concluded that the Tribunal does have jurisdiction to review the reasonable and necessary supports contained in the Applicant’s plan dated 12 June 2021.

DECISION

1. The Tribunal decides that it has jurisdiction, pursuant to section 103 of the National Disability Insurance Scheme Act 2013 (Cth), to review the decision of the Respondent made on 14 October 2021, being a decision to confirm the approval of the statement of participants supports in the Applicant’s plan dated 12 June 2021.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Member P Smith

..................................[SGD].................................

Associate

Dated: 11 January 2022

Dates of hearing:	20 December 2021
Applicant	By Telephone
Advocate for the Applicant:	Speaking Up For You
Respondent:	By Telephone
Representative for the Respondent:	Ms S Minhas